Delhi High Court

Suresh @ Bona vs State on 28 October, 2010

Author: Anil Kumar

*                   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                  Crl. M.B. No. 1112/2010 in Crl. A. No. 941/2010




%                                 Date of Decision: 28.10.2010


Suresh @ Bona                                                 .... Appellant
                             Through Mr.Bhupesh Narula, Advocate




                                              Versus


State                                                            .... Respondent
                             Through Mr.Jaideep Malik, APP


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE S.L.BHAYANA

1.        Whether reporters of Local papers may
          be allowed to see the judgment?
2.        To be referred to the reporter or not?
3.        Whether the judgment should be
          reported in the Digest?



ANIL KUMAR, J.

This is an application by the appellant/applicant under

Section 389 of Criminal Procedure Code seeking suspension of his

sentence and to release him on bail during the pendency of the appeal.

The appellant has been convicted with imprisonment for life and a fine

of Rs. 15,000/- for the offence punishable under Section 302/34 of IPC

and in default of payment of fine to undergo further rigorous

imprisonment for six months by order of conviction dated 30th January,

2010 and sentenced by the order dated 6th February, 2010 in a case

arising out of FIR 337/2007 PS Nabi Karim under Section 302/34 of

IPC.

The applicant has contended in para-7 of the application

that he was never involved in any other criminal or related cases.

According to the applicant his family comprises of his wife and four

minor children and applicant is the only bread earner in the family and

he was earning Rs.2500/- per month as a labourer in a shop. He is

alleged to have come from a poor segment of society and he is unable to

furnish a local surety of minimum amount if bail is granted to him. It

is also contended that he was never on bail and he has never jumped

bail and has never been declared a proclaimed offender.

The applicant has contended that he has already

undergone incarceration for the last three years and he has good

chance of acquittal as the order convicting him is based on surmises

and conjectures and the prosecution has failed to prove its case beyond

reasonable doubt.

For seeking suspension of sentence, the applicant has

asserted that the testimony of PW-4 Laxman Indoriya lacks credibility

and consistency as when he saw the applicant attacking the deceased,

instead of trying to rescue the victim or calling police, he proceeded to

Railway Station and did not make any effort to call the police which is

highly improbable and the conduct of such a witness is doubtful and

could not be relied on for his conviction. The testimony of PW-4 is also

challenged on the ground that though he has stated that he is not

related to the accused, PW-4 is related as Laxman Indoria PW-4 and

Mr. Vikas @ Sunil, another co-accused are cousins as their

grandmother was Smt. Hardai as testified by DW-1 and the relations

between the two branches of the family were not cordial and PW-4 has

been extorting money and blackmailing the people. The applicant

has also referred to the inconsistencies and glaring discrepancies in the

statement of PW-4 which according to the applicant has not been taken

into consideration.

The Nominal Roll dated 28th August, 2010 of the applicant

reveals that as on that date he has undergone a sentence of 2 years 11

months and six days and has earned remission for two months and

nine days.

The status report filed by the respondent states that the

applicant Suresh @ Bona had not availed any relief in the nature of

interim bail/parole till date and his character during the last one year

had been satisfactory. The Court was not satisfied with the status

report dated 30th August, 2008 and therefore, directed the respondents

to file the detailed report about previous cases or conviction of the

appellant or any other material relevant to decide whether the sentence

of the applicant is to be suspended or not or whether he is to be

released on bail. Another status report dated 26th October, 2010 of

Station House Officer, PS Nabi Karim has been filed indicating about 15

cases against the applicant. Some of the cases are pending trial against

the applicant whereas he has been acquitted in some of the cases and

he has also been convicted in some cases. He has been convicted in

FIR 352/07 dated 26th November 2002 under Section 384/324 of IPC

& 25 of Arms Act, as well as FIR 92/2006 dated 5th April, 2006 under

Section 21 of NDPS Act, PS Nabi Karim and as also in FIR 337/2007

dated 18th September, 2007 under Section 302/34 of IPC, PS Nabi

Karim. According to the learned counsel for the prosecution, the

applicant is a hard core ruthless criminal, and the details of cases

against him are as under:-

S.No.      FIR No.         Date             U/s           P.S            Present
                                                                         Status
1.         401/89          25.11.89         25A A.Act     Nabi   Karim   P.T
2.         340/90          25.09.90         21 NDPS Act   Nabi   Karim   Acquitted
3.         289/93          06.09.93         25 A Act      Nabi   Karim   Acquitted
4.         418/93          12.12.93         21 NDPS Act   Nabi   Karim   P.T.

 5.         218/96          06.06.96         25A Act       Sadar Bazar   P.T.
6.         212/96          06.06.96         379 IPC       Sadar Bazar   P.T
7.         408/96          14.10.96         21 NDPS Act   Nabi Karim    Acquitted
8.         22/90           20.01.99         27 NDPS Act   Nabi Karim    Acquitted
9.         462/99          20.08.99         307/34 IPC    NDLS          P.T.
10.        19/01           17.01.01         25 A Act      Sadar Bazar   P.T.
11.        143/01          30.05.01         308/324 IPC   Nabi Karim    P.T.
12.        352/07          26.11.02         384/324 IPC   Nabi Karim    Convicted
                                            & 25 A Act
13.        163/04          04.05.04         21 NDPS Act   Nabi Karim    Acquitted
14.        92/06           05.04.06         21 NDPS Act   Nabi Karim    Convicted
15.        337/07          18.09.07         302/34 IPC    Nabi Karim    Convicted

The learned additional public prosecutor has also brought

to our notice that Laxman Indoria PW-4 was the eye witness of the

incident. Pursuant to the disclosure statement, blood stained nicker

and one Iranian note of 25000 dinar were recovered. A knife was also

discovered which was used by the applicant to stab the deceased and

the purse of the deceased was recovered on being pointed out by the

applicant on 19th September, 2007.

The status report filed by the respondent also reveals that

during the trial, the eye witness Laxman Indoria had made the

complaints about threats from applicant consequent to which security

under the Witness Protection Program was provided to him. Though

later on security provided to PW-4, eye witness Mr. Laxman Indoria was

withdrawn on account of the fact that the applicant and other co-

accused were convicted. However, the eye witness Laxman Indoria again

complained about the indirect threats given to him and he was again

provided with security on the directions of the Court.

According to the learned additional public prosecutor, the

applicant is a desperate criminal and he can go up to any extent to

commit a crime. It is also apprehended that there is a likelihood of

applicant harming Laxman Indoria in case he is released on bail and in

the circumstances, suspension of sentence of the applicant and his

release on bail is strongly opposed by the learned additional public

prosecutor.

This Court has heard the learned counsel for the parties

and have also perused the record. The learned counsel for the applicant

is unable to give any satisfactory explanation as to why the details of

the cases in which the applicant has been convicted under NDPS Act

and under Section 302/34 of the IPC were not given in his application

for suspension of sentence. The application is supported by the affidavit

of the applicant and in the circumstances, it is apparent that the

applicant has tried to conceal the material facts from this Court.

The applicant has also not given the details of various cases

as detailed hereinabove where the proceedings are still pending against

him under NDPS Act, Arms Act and under various provisions of IPC.

The learned counsel for the applicant has also sought

suspension of sentence of the applicant on the ground that his appeal is

not likely to be taken up in near future. This plea is not correct and

cannot be accepted as the appeals of 2010 where the accused are under

custody are listed in regular matters. The plea that the appeal is not

likely to be taken up in the near future cannot be a ground for

suspending the sentence of the applicant. In Kishori Lal v. Rupa, (2004)

7 SCC 638, the Supreme Court has indicated the factors that require to

be considered by the courts while granting benefit under Section 389 in

cases involving serious offences like murder, etc. It will be relevant to

refer to the observations made at pages 639-40, (paras 4-6)

"4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the respondent-accused were on bail.

6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view."

The aforesaid view is reiterated by the Supreme Court in

Vasant Tukaram Pawar v. State of Maharashtra (2005) 5 SCC 281 SCC

p.283, para 7 and Gomti v. Thakurdas (2007) 11 SCC 160. In (2008) 2

SCC 571, Sidhartha Vasisht alias Manu Sharma Vs State(NCT of Delhi)

where it was held that when a person is convicted by a Court, he cannot

be said to be an innocent person until the final decision is recorded by

the Superior Court or appellate Court in his favor. For suspending

sentence what is really necessary is to consider whether reasons exist

to suspend execution of sentence and grant of bail. It was further held

in para 32 of the said judgment that the expression within `measurable

distance of time' the appeal is likely to be heard is to be considered

keeping in view the seriousness of offence, the manner in which the